Observation (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Bangladesh (Ratification: 1972)

Autre commentaire sur C087

Observation

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2015 concerning the application of the Convention. The Committee observes that the Conference Committee urged the Government to: undertake amendments to the Bangladesh Labour Act (BLA) 2006, as amended in 2013, in order to address the issues raised in relation to freedom of association and collective bargaining; ensure that the law governing the export processing zones (EPZs) allows for full freedom of association, including to form trade unions and to associate with trade unions outside of EPZs; investigate as a matter of urgency all acts of anti-union discrimination, ensure the reinstatement of those illegally dismissed, and impose fines or criminal sanctions; and ensure that applications for union registration are acted upon expeditiously and are not denied unless they fail to meet clear and objective criteria set out in the law. Further noting that the Conference Committee urged the Government to accept a high-level tripartite mission this year to ensure compliance with the recommendations, the Committee notes the Government’s indication that it did not consider it feasible to ensure effective coordination of both the direct contacts mission related to the Labour Inspection Convention, 1947 (No. 81), and the mission related to this Convention. Noting that the Government did, however, express its willingness to receive a mission related to this Convention in 2016, the Committee expresses its firm hope that the high-level tripartite mission requested by the Conference Committee will take place without further delay.

The Committee takes note of the observations provided by the International Trade Union Confederation (ITUC) in a communication received on 1 September 2015. The Committee takes note of the response of the Government to the 2014 ITUC observations and requests the Government to provide its comments on the latest communication. The Committee notes the observations provided by the International Organisation of Employers (IOE) and the Bangladesh Employers’ Federation (BEF) in a communication received on 1 September 2015. The Committee also notes the observations of the IOE received on 1 September 2015, which are of a general nature.

Civil liberties. The Committee has, over the years, taken note of numerous allegations from the ITUC of violence against trade unionists. The Committee had requested the Government to provide detailed information on any pending investigations into serious allegations of violence and harassment. The Committee notes the Government’s general indication that there was no record of harassment for participation in trade union activities. The Government also refers to a helpline targeting the ready-made garment (RMG) sector in the Ashulia area which is expected to expand nationwide. The Committee notes this new development with interest and requests the Government to provide further information on the expansion of the helpline and statistics on its use, the precise nature of the follow-up to calls and the number of cases resolved.

The Committee had also requested the Government to report on the status of the investigations into the 2012 murder of a trade unionist. The Committee notes the information provided on the measures taken to investigate allegations of violence against a trade union general secretary and the subsequent filing of a court case against the management which is currently pending, while other cases were resolved through mutual dialogue. As regards the 2012 murder, the Government indicates that the Criminal Investigation Department has concluded that two persons are the principal suspects, and it has identified one of those. As this suspect had absconded, the Government has declared a reward of 100,000 Bangladeshi taka (US$1,400) for the apprehension of the identified individual. The case has been brought under the ambit of “sensitive cases”, which will ensure regular monitoring and thereby an expeditious trial. The charge sheet has been submitted and the case is under trial in absentia. The Committee trusts that all perpetrators and instigators responsible for violence against trade unionists will be identified, brought to trial and punished so as to prevent the repetition of such acts, and requests the Government to provide information on the outcome of the ongoing trials and investigations referred to.

Legislative implementation. The Committee notes that the Bangladesh Labour Rules (BLR or Rules) were published in the Official Gazette on 15 September 2015 as part of the implementation of the BLA. The Committee welcomes the issuance of the Rules and trusts that they will assist in the implementation of the BLA in a manner which is fully consistent with the Convention and raises below a certain number of matters in this regard.

Articles 2 and 3 of the Convention. The right to organize, elect officers and carry out activities freely. The Committee had previously requested the Government to provide detailed information and statistics on the registration of trade unions, and to respond to the ITUC observations that registered unions still only represented a small fraction of the 4 million workers in the RMG sector, and that there were a large number of registration applications that had yet to be acted upon, while dozens had been rejected under the Director of Labour’s discretionary authority. The Committee notes the Government’s indication that there are 7,550 trade unions and 171 trade union federations registered in the country. Between 1 January 2013 and 31 August 2015 a total of 333 trade unions were registered in the RMG sector bringing the total now to 465. There are 16 trade unions in the shrimp sector and eight in the ship-breaking sector. The Government adds that, in order to further ease the process, an online registration system has been introduced on the website of the Department of Labour. The Government further indicates that 31 applications for registration were refused in 2013, 145 in 2014 and 121 in 2015 (up to August) as they were missing the correct documents and information and were not in conformity with the provisions of the labour law. According to the Government, 30 applications for registration in the RMG sector were rejected, while the ITUC refers to 39. Recalling that the registration process should be a simple formality, which should not restrict the right of workers to establish organizations without previous authorization, the Committee trusts that the online registration system will facilitate resolution of registration applications expeditiously, and requests the Government to continue to provide statistics on the registration of trade unions and the specific legislative obstacles invoked for cases of denial.

The Committee notes that Rule 167(4) appears to introduce a new minimum membership requirement of 400 workers to establish an agricultural trade union. The Committee expresses its concern at the apparent introduction in the Rules of an element that is not set out in the BLA itself, and which would restrict the right of agricultural workers to form and join the organization of their own choosing. The Committee recalls in this regard its 2015 General Survey, Giving a voice to rural workers, paragraphs 115–120 and 292, in which it refers to the importance of ensuring that minimum membership requirements for rural workers’ organizations do not constitute an obstacle to the right to organize of these workers, especially bearing in mind the particular challenges they face for organizing. The Committee requests the Government to clarify the implications of this Rule and, if it does indeed restrict the right to organize of agricultural workers, to modify the Rule so as to align it with the BLA and in any event to lower the requirement to ensure conformity with the Convention.

As regards the existing 30 per cent minimum membership requirement, while noting the views of the Government and the IOE and BEF that the establishment of threshold limits for the formation of unions must be viewed within the national context and must bear in mind the importance of avoiding a proliferation of trade unions that could be counterproductive to the development of healthy industrial relations and economic growth, the Committee must recall its deep concern that workers are still obliged to meet this excessive requirement for initial and continued union registration, and that unions whose membership falls below this number will be deregistered (sections 179(2) and 190(f) of the BLA), while no more than three trade unions shall be registered in any establishment or group of establishments (section 179(5)). The Committee emphasizes once again that such a high threshold for merely being able to form a union and maintain registration violates the right of all workers, without distinction whatsoever, to form and join organizations of their own choosing provided under Article 2 of the Convention. The Committee requests the Government to review these provisions with the social partners with a view to its amendment and to provide information on the progress made in this regard.

As regards the legislative reform more generally, the Committee notes the reference made by the IOE and the BEF to their interventions in the Conference Committee and in particular their indication that it would be useful for the ILO to provide assistance to the country in the process of reviewing its legislation so that the overall outcomes, as provided for in the Convention, could be achieved and a distinction made between lawful industrial activities and public disorder. Regretting that the Government has not provided any additional information on steps taken to further amend the BLA since its 2013 amendment, the Committee once again requests the Government to indicate the steps taken to review and amend the following provisions to ensure that restrictions on the exercise of the right to freedom of association and related industrial activities are in conformity with the Convention: scope of the law (sections 1(4), 2(49) and (65), and 175); restrictions on organizing in civil aviation and for seafarers (sections 184(1), (2) and (4), and 185(3)); restrictions on organizing in groups of establishments (section 183(1)); restrictions on trade union membership (sections 2(65), 175, 185(2), 193 and 300); interference in trade union activity (sections 196(2)(a) and (b), 190(e) and (g), 192, 229(c), 291 and 299); interference in trade union elections (sections 196(2)(d) and 317(d)); interference in the right to draw up their constitutions freely (section 179(1)); excessive restrictions on the right to strike (sections 211(1), (3), (4) and (8), and 227(c)), accompanied by severe penalties (sections 196(2)(e), 291, and 294–296); excessive preferential rights for collective bargaining agents (sections 202(24)(c) and (e), and 204); and cancellation of trade union registration (section 202(22)) and excessive penalties (section 301).

The Committee further notes that newly issued Rule 169(4) (eligibility for membership to the union executive committee) refers to the notion of permanent workers, and requests the Government to clarify the impact that this would have on the right of workers’ organizations to elect their officers freely.

The Committee further notes that Rule 202 restricts in a very general manner the actions that can be taken by trade unions and participation committees, providing that they shall refrain in particular from: interference in the administrative functions of the establishment; interference in the appointment, transfer and promotion of officials, employees or workers in the establishment; receiving any facilities from the management concerning transport, furniture or financial matters; and interference in production and normal activities of the establishment. The Committee notes with concern that Rule 188 further provides a role for the employer in forming the election committees to conduct the election of worker representatives to participation committees in the absence of a union, and provides a ratio for the representation therein of two employer representatives to three worker representatives, while at the same time, the ITUC has made reference in its communication to growing concerns that employers are encouraging the formation of company unions in order to prevent being organized by worker-led trade unions. The Committee notes that while section 195 of the BLA sets out what constitutes unfair labour practices on the part of the employers, there appears to be no additional development on this point in the Rules (apart from a general reference in Rule 366) that would clearly limit the restrictions set out in Rule 202 or provide appropriate procedures and remedies for unfair labour practice complaints, including as regards the election process to participation committees. Observing that this was an element of the Government’s commitment undertaken within the framework of the implementation of the European Union, United States, Bangladesh Sustainability Compact, the Committee requests the Government to indicate the steps taken to ensure that workers’ organizations are not restricted in the exercise of their internal affairs and that unfair labour practices are effectively prevented.

Article 5. The right to form federations. In its previous comments, the Committee requested the Government to review section 200(1) of the BLA so as to ensure that the requirement of the minimum number of trade unions to form a federation (now at five) is not excessively high and thus does not infringe the right of workers’ organizations to form federations. It further requested the Government to take measures to amend the section so that workers may form federations of a broader occupational or interoccupational coverage and that there is no requirement for the trade union members to belong to more than one administrative division. The Committee takes due note of the Government’s indication that this amendment made in 2013 was the result of tripartite consensus. The Committee requests the Government to continue to provide information on any further developments in this regard, including on the number of federations formed since the amendment and as to whether any complaints have been made in relation to the impact that this provision has had on the right of workers’ organizations to form the federation of their own choosing.

Right to organize in export processing zones (EPZs). In its previous observation, the Committee had recalled that there were a number of provisions of the EPZ Workers’ Welfare Associations and Industrial Relations Act 2010 (EWWAIRA) (sections 6–10, 12, 16, 20, 21, 24, 27, 28, 34, 38, 46 and 80), which needed to be amended in order to bring the Act into conformity with the Convention. The Government referred to a draft of the Bangladesh EPZ Labour Act, which was approved in principle by the Cabinet in July 2014, while the ITUC had indicated that this draft was elaborated without consultation with Worker representatives and did nothing to address the concerns that had been raised under the Convention. The Committee had thus called on the Government to carry out full consultations with the workers’ and employers’ organizations in the country with a view to enacting new legislation for the EPZs which is fully in conformity with the provisions of the Convention. The Government indicates in the latest information provided simply that the draft EPZ Labour Act has been sent to the Ministry of Law for vetting prior to submission to the Parliament. Recalling the Conference Committee’s recommendation to the Government to ensure that the law governing the EPZs allows for full freedom of association, including to form trade unions and to associate with trade unions outside of EPZs, the Committee once again urges the Government to resubmit this matter for full consultations with the workers’ and employers’ organizations in the country with a view to enacting new legislation for the EPZs in the near future, which is fully in conformity with the Convention.

The Committee further notes that the ITUC refers in its observations to a Korean Export Processing Zone (KEPZ), which it states is the only private EPZ established under the Bangladesh Private EPZ Act (1996), and adds that it is unclear which law is applied to this zone as regards wages and labour rights. The ITUC alleges that on the one hand, the wages of government EPZs appear not to apply in the KEPZ, while on the other hand the employer bans the establishment of trade unions implying that the BLA does not apply either. The Committee requests the Government to respond to these observations and to indicate the labour laws that are applicable to private EPZs (or Special Economic Zones), and which ensure that the rights under the Convention are guaranteed to workers in these zones.

In view of the absence of any meaningful progress on most of the matters it has been raising for many years, the Committee cannot but recall the critical importance which it gives to freedom of association as a fundamental human and enabling right and express its firm hope that significant progress will be made in the very near future to bring the legislation and practice into conformity with the Convention.